Park or Parking?

Ronald Hudson has lived on Capitol Hill for 50 years, but now when he drives around the corner of Tennessee Avenue and 13th Street, he cringes.

Thanks to a District Department of Transportation (DDOT) decision, neighbors are at war over Parcel 266, a piece of federal land that also happens to be adjacent to the front and side yards of Joyce West and Mark Kadesh, the owners of 147 Tennessee Avenue.

Hudson, who has been a real estate professional and friends with the couple for over 20 years, said that a DDOT decision to classify the land as public parking space has “reared an ugly-headed monster” after West called the cops on him after he refused to relay a message to his sister to not walk on West’s plants.

“This land has been in use by this community for hundreds of years. Why did this start happening last year?” Hudson said.

This Land is Your Land…Or Mine?

For complex historic reasons (see explanation at http://chrs.org/wp-content/uploads/2013/07/06_CHRS_PublicSpace.pdf), homeowners on Capitol Hill do not own their front and side yards. This public land is called “parked space.” At the end of the century, Congress explicitly awarded private property owners the right to use this public space as front and side yards to their properties with the requirement that they maintain the property.

The “parked” public space surrounding Capitol Hill homes falls under DDOT’s administration.According to DDOT, access to parked space is the same as public space—there should be access to all and “citizens are encouraged to use public space in a safe and neighborly manner.”

The District of Columbia also controls a multitude of scattered and small parcels of land known as pocket or triangle parks. Many are federally owned reservations or municipal parks. Others are “parked space.” Reservation 266 was among the parcels transferred to the District’s jurisdiction in 1972. The section next to West’s home falls under the purview of DDOT.

Private or Public

West and Kadesh have lived in their home since 1991. Since they moved in, they have been maintaining Parcel 266. Last year, West applied to DDOT for a permit to landscape the property. The plan originally included a patio and fence, but those elements were rejected. West resubmitted a plan without these features that was approved in March 2013.

However this piece of land has been perceived and used by the community as a public park for decades, an open space where people walked their dogs and children played. It functioned more as a public park than as a private yard. When landscaping commenced, some were disturbed by what seemed the taking of public space for private use. Others were pleased with the beautification efforts.

As neighbors began to question the construction, Commissioner Nicholas Alberti (6A04), whose single member district includes Reservation 266, approached DDOT to ascertain the legality of West’s landscaping. Eventually, in response to Alberti’s investigation, a ‘Stop Work’ order was issued until the Public Space Committee could review West’s landscaping project;,and check that there was no issue of encroachment on National Park Service land.

A meeting was convened at the Surveyor’s Office of representatives of DDOT, DPR, Department of Consumer and Regulatory Affairs (DCRA) to “determine who has ultimate authority over the space and the appropriate process for neighbors who wish to beautify public park space.” Representatives of DDOT defended the issuance of the permit to West, and lifted their stop work order in late July. West was able to complete her landscaping project which consisted of trees, bushes and flowers from her front yard along the perimeter of Parcel 266 with an open area on the property line between the other half of the triangle.

ANC 6A Weighs In

With many neighbors still concerned, David Holmes, Chairman of ANC 6A, sent a letter to DDOT asking for further clarification of the matter. DDOT responded on Oct. 25, explaining their decision to grant the permit.

“DDOT classified this area as ‘public parking,’ which is the area of public space devoted to open space, greenery, parks or parking that lies between the property line and the edge of the actual or planned sidewalk that is near the property line,” the letter said. “This gives DDOT the authority to authorize the landscaping of Parcel 266 via a public space permit.”

However, since all yards on Capitol Hill are considered public parking space, West and Kadesh feel that neighbors should respect the plants, hedges and other greenery they planted as they would in anyone’s yard.

War of the Roses

According to West some neighbors, perhaps frustrated by the DDOT decision, have been walking through the hedges and walking on mulched flower beds, potentially damaging the plantings. After a few such incidents, West installed six security cameras outside her home, a suggestion she says came from the police department. West also gave letters to neighbors, asking them to respect her property.

“I know you may disagree with the city and the garden design (sorry!), but we would like the flowers to bloom this spring and unfortunately the plants are being irresponsibly harmed by people and dogs trampling on and in the plants,” said one note posted on a door.

Most recently, West got the court to issue Temporary Restraining Orders (TRO) to two neighbors who, according to the security film, persisted in walking on the flower beds even when asked not to do so.

In fact, according to Derek Thomas, a certified professional horticulturalist and owner of Thomas Landscapes, any traffic across mulched peonies and perennials will damage them, especially during the dormant periods. “The plants have tender shoots just below the surface of the ground and walking on them will break, compact, and shred the tender new shoots. Also animals will have the same impact. Plants that are dormant should not be walked on,” he says.

“Calling the police to complain that someone is on the public space that is adjacent to your yard is not such a good use of their time,” she told this paper, adding that West also sent a letter to parents of the school, asking that they not walk through the plants.

“Taking the court’s time on a bogus restraining order is not a good use of tax dollars. It is infuriating that the police are being manipulated,” Schoell went on. “The letter from DDOT clearly states that this space is for public use, ‘to be used in a safe and neighborly manner.’ Calling the police on neighbors who are in the space is not very neighborly!”

However, Kadesh told this paper, “We did all the things that were legally required of us to do to plant this garden. The city’s director of transportation has stated very clearly that the ANC is wrong in its characterization of the space and it is public parking, not a public park,” he said.

Kadesh denies that West has ever yelled at anyone, “although she has asked people to pick up their dog refuse and not trample through the plants.”

Solutions

While it is clear that West has a proper permit for the landscaping which has been confirmed by DDOT, this does not put to rest the ill-feeling.

Commissioner Omar Mahmud, who is chair of ANC 6A’s Transportation and Public Space Committee, said that the real issue is with the way the landscaping was done.

“She [West] configured bushes around the parameter so there aren’t any openings on one side,” he said. ”It looks like she is marking it off like it is part of her front yard. But I am concerned about anyone intentionally damaging it. I think that’s wrong.”

Hudson said that if West “took out some bushes and put in another entrance it would be a compromise, this way people wouldn’t have to walk through it.”

Letter of the Law or Community Agreement

While technically all front and side yards are public space and anyone would have the legal right to access that space, by common agreement the community treats other’s front yards as if they were privately owned. A person does not enter someone’s yard and walk their dogs, or come in and roam about.

In this case conflict has resulted because, regardless of the designation of this parcel as public parking, it historically did not function as someone’s yard. The neighbors are not extending the “common agreement” to this piece of land.

Suggestions have been made that to avoid this type of conflict in the future, a regulatory requirement should be put in place that a homeowner applying for landscaping in triangle parks go before the ANC with the plans, regardless of whether the land is designated “public parking.” In this way, the public, which has a right to use the land, would have a say in its configuration.